bank." it was signed by a a senior planner. it was signed off by a senior planner. one had a mistake on it and had an atm on the exterior, and that required the 312 notice. that is it. nothing else. we had the zoning administrator, the planning department, the person who interprets the planning code, the planning commission, all of the workers at the planning department, and inspector dufty, who interprets planning department code, and there is no issue with the building department, so the next issue is that we are humble me requesting that this board make a revision. we have plans. to approve this president as it is. that will allow us to not have to come back before this board in six weeks with another permit. if we do not get four votes tonight, we pull a permit again, by the same planner, showing the

atm, that meets all of the requirements of this boards, all of the requirements of the building department and the planning department, and if mr. preston wishes to appeal that, only two votes are needed to appeal that, and that is not going to happen. he is going to need four votes to sustain his appeal, and that is not going to happen, and that is going to waste everyone in this room umpteen days, and if there was not a mistake with the atm, we would only need two board members to uphold the permit and deny mr. preston's appeal, so what we are homily asking you tonight is to amend this permit what we are homily -- humbly asking is to have senior inspector joe dufty or one of his associates come out and confirmed that the building

is, in fact, and the leasing area is under 4000 square feet. thank you. note -- director goldstein: director sanchez? -- mr. sanchez? >> scott sanchez, planning department. i really do not have much to add. we have applied this consistently. to my knowledge, the other banks that have been created recently, the chase bank on fulton,. -- had that been subjected, it would require section 312 notice, at least, because that was prior to the conditional-use of four retail uses. -- it conditional use for retail uses. there are other banks.

no conditional use. there was an item heard by the planning commission. the planning commission did not -- may be the zoning administrator answered it, but that was something that was accepted by the planning commission. that is not a formula retail use. it was stated in our case report it is not a formula retail use, and the planning commission denied it for other reasons, and we have been very consistent in our application. i understand is a disagreement between the appellant and the department and how we are applying this. i respect the appellant and appreciate his argument. however, we simply have a disagreement. we deal with financial-services, not listed amongst bars, movie theaters, restaurants, all of the other uses that are specifically called out. since it is not called out, it is not subject to the formula

used controls, and we have applied those appropriately, in the planning commission has also applied this appropriately. so i am available for any questions. commissioner hwang: has anybody in the past objected to the planning commission note -- commission, financial uses? >> to my knowledge, there has been no appeal to the determination that financial services are now subject to formula control. commissioner hwang: my next question is, so what would fall under that category? i think the list has created a lot of questions, the one that mr. hernandez initially put up, or, actually, you put up, but i did not see the header, so there are other things listed. i did not memorize all of them

on the list, but i did see automotive. when those fall within the formula retail -- with those fall within the formula retail? " what would fall in that general category? >> basically, everything that we have been applying formula used to. commissioner hwang: what else? >> a formula clothing store, a coffee shop. they are not listed on the controls. it would include a bar, a dried- up facility, eating or drinking -- a dried-up facility. -- a drive-up facility. commissioner hwang: i do not

have the number memorized. sales, service, retail category. >> there is a definition of 790, which talks about general retail sales service, and then there is from 1988. this is not personal service. it is not personal service, and if they do not board overnight -- if they do board overnight, then it is an animal hospital. that is the only one i could find, and there may have been a sudden one related to a catering establishment, and a catering establishment that is not open to the public is not a retail use. >> what would fall into the sales commissioner -- commissioner hwang: what would

fall in the other? >> it gives a fairly exhaustive list of types of retail uses that would be considered under 790.102. commissioner hwang: where is that? >> i can put it of further -- under the overhead, if you would like. commissioner hwang: sure. if i could have the overhead, please? so we have general groceries,

which include a diverse variety of complimentary food and non- food commodities. we have specialty groceries, which are similar but are generally considered -- he shops, confections, etc.. -- tea shops. tobacco and magazines, self- service laundromats, household goods -- commissioner hwang: is that list considered exhaustive? >> it depends, because there are so many variations and so many creative applications of business establishments that may fit under this use. it may fit under a restaurant use. it is not exhaustive. there may be something else we apply under this category. commissioner hwang: thank you. commissioner.-- commissioner

fung: mr. sanchez, historically, we know that banks had a moratorium against them, or there was definitely a c.u. of some form. since this came out in 2004, has this occurred somewhere in san francisco, and, therefore, the issue of definition of specific news was brought forth? -- specific use was brought forth? >> no. financial-services, it goes back to the late 1970's and early 1980's, when there was a proliferation of branch banks, and then, since that time, it does not seem to have been in use, even the controls regulating financial services being adequate to address those concerns, or it is just the nature of the baking industry, perhaps, that has changed, but

we believe -- or it is just the nature of the banking industry. if that is not the case for this community, they can always approached their supervisor for legislation, and that would either create a separate commercial district for dis -- divisadero. there are other ways of dealing with that, special use, etc. thank you. note -- director goldstein: is there anything more? ok, seeing nothing more, commissioners, the matter is submitted.

commissioner fung: can i move my car? [laughter] i guess those of us who have worked with planning codes throughout our professional career, there is an understanding that no planning code is 100% perfect, and the question of definitions continually arises, and there are a number of different ways to deal with that. we understand how some of those questions are dealt with in san francisco, through determinations by the zoning administrator. for those of us to have to work with them, we also understand a

history of how those things are interpreted, and in my opinion, the definition within the formula retail is quite clear as to what is there, and i do not think it includes financial- services. the question is, it is not necessarily one of whether there is an automatic conditional use for the review for the financial services, since that is handled in a different manner in terms of what is principally permitted and what is conditionally permitted. in this instance, i find that the definition of formula retail services. commissioner hwang: i have to

say that i drew the different conclusion after hearing them speak to this question, and for that reason, i found most compelling the argument put forward by the appellant that the formula retail definition does include in those catch-all specific provisions -- i think, for that reason alone, i would be inclined to grant the appeal. however, i would also be interested in seeing and directing the department of building inspections to do the measurement that was put in question by the appellant and continue until we get that.

there are a number of things to balance here, but one thing, he has a right to rely on some consistency in the application of the law, and i think the fact that the planning department has done this on the exclusion of financial-services, chase was entitled to rely on that. also, i did what i could, and the purpose was the concern over displacement of local competitive businesses, most notably the starbucks and the mom-and-pop café, and that that was a similar concern. i think it is in a different

body than ours, but having said that, i do think the community would like assurances on the square footage that the department should be able to comply with that fairly easily, but otherwise, i find the proper application of the formula retail as well as -- and i am ok with modifying the walk-in atm, as well. vice president garcia: i think at some point if the planning department had codified whether or not this falls into a category -- i am losing my train of thought here, formula retail. i think we would still be here. i think the appellants would just have a different argument, which is not a criticism of the appellant by any means. the basic idea is that people in

the neighborhood, some people in the neighborhood, do not want a bank to be there. and that is understandable. you might prefer some sort of, you know, smaller operation that would have the same foot traffic and do the same thing that this bank purports to do, this business purports to do, and i think i would strongly agree with the fact that this is not formula retail by practice and by the different arguments that have been presented as to whether or not it falls in that category, and so then we have to fall back on the type of district this is, and this is a permitted use, it becomes a right, and i do not think enough reasons were given as to why it should not exist there, given that fact, but one thing i do want to say is that i am tired.

nobody said anything that was not worth listening to. everybody in this room spoke very intelligently and very much to the point without getting hyperbolic, without getting hostile. it was refreshing, because that is not always the case. particularly when it gets to be this late, so i do not think it falls into a category of formula retail. as to whether or not it is under a certain does not require a cu. i do not see that as an issue, because no architect is going to submit plans that exceed the 4000 knowing what the consequences are, and if upon further examination of those plans, they find it exceeds 4000, they will simply alter the plan, so i do not see that as being an issue. they know, everybody that deals with this type of thing, knows how to do that. as to the other issue having to

do with the atm, that the block of facility would require a different level of oversight and therefore a cu and that it has been proposed to amend that, i think for purposes, that is not really the issue that bothers the neighborhood, so i think for this board, if we were going to uphold the permit to do whatever it takes to facilitate that process, facilitate not having to go through more process, i think would be perfectly reasonable, and furthermore, i think it would not be reasonable if we do not do that. again, thank you, everybody, for coming tonight. i going to move that we uphold the permit and that we do in such a way -- there are two amendments, and there is one we have to uphold, and i think that is the one dealing with awnings. if we need a way to refer to it,

madam director, and then the other one having to do with that part of the permit that would be affected by the walk-up facility, i am sorry?" -- i am sorry? that requires that we overturned -- no, i guess we could uphold but with conditions. director goldstein: you need four votes for that. vice president garcia: that the proposed amendment be allowed, accepted, whatever the term, inc.. thank you. director goldstein: ok, commissioner garcia, that would be to reflect the changes from addendum number two from 2 with us 11? vice president garcia wrote --

note from addendum number two from 2011. .-- vice president garcia: yes. commissioner peterson: those are two different votes. do you want to call them separately? commissioner peterson -- vice president garcia: yes. director goldstein: ok, we will do the one with awnings, and that was to uphold the permit. on that motion, et -- motion, supervisor farrell, supervisor campos -- commissioner fung, commissioner hwang, commissioner

peterson. the next one is to grant the appeal as stated. on that motion, again, by the vice-president, commissioner fung, and then commissioner peterson, commissioner hwang. ok, so that motion fails. barring another motion or a continuance to allow the commissioners to vote, it to have it -- to vote, to have it re-cast -- vice president garcia: i would move that we continue this.

commissioner hwang: i would propose a friendly amendment that the president can have questions. director goldstein: -- commissioner hwang: she has been watching this tonight. director goldstein: the motion is to continue this item, 11- 011, march 2, 1923 to allow the missing commissioner to participate in the final vote -- on march 2 -- on march 23. on that, commissioner fung,

commissioner hwang, commissioner peterson. vice president garcia, though it -- there is no further business. [gavel] director goldstein: the meeting is adjourned.

[roll call] thank you. commissioners, the first

category are items for continuance. the staff has requested that the one item that is under the calendar be announced and that you take your action. this item was actually advertised for 1:30. i will announce this, but we should have the continuance at 130. this is 2009. 1163. this is the proposed continuance for april 14, 2011. on the calendar, for the information item, number 11,

this is the request for a discretionary review. this has been withdrawn. this is for your consideration. also on this calendar, 45 lambry street. the continuance for april 14, 2011. the two parties are here and may want to speak to it. you may not take your action until 1:30. with that, commissioners, i will announce the possibility you will continue your last item. this is case 2007.0903. teasure island redevelopment project. you may not continue this until

6:00. with that, commissioners. they are announcing. >> that is proposed for continuance. >> we have to come back at 6:00. >> commissioners, you can discus s this. if, for instance, there is a break. this is for the city attorney. you take a break and if the commission does happen -- this item will be announced for possible continuance. if no one asks about this, this is all of the calendar.